Opinion
No. 2015NY010604.
07-06-2015
The PEOPLE of the State of New York, Plaintiff, v. Jerome B. HARRISON, Defendant.
Bruce A. Yerman, Esq., for defendant. Cyrus R. Vance, Jr., New York County District Attorney, by ADA Sarah Briglia, for The People.
Bruce A. Yerman, Esq., for defendant.
Cyrus R. Vance, Jr., New York County District Attorney, by ADA Sarah Briglia, for The People.
STEVEN M. STATSINGER, J.
Defendant, charged with criminal contempt in the second degree (Penal Law § 215.50(3) ), aggravated harassment in the second degree (Penal Law § 240.30(2) ), and harassment in the second degree (Penal Law § 240.26(3) ), moves to dismiss, arguing that the Information is facially insufficient. He first argues that the filing of an order of protection that was not signed by a judge renders the criminal contempt count facially insufficient. People v. Boyce, 25 Misc.3d 1056, 886 N.Y.S.2d 329 (Crim Ct N.Y. County 2009), held that the filing of an unsigned order of protection was a hearsay defect that rendered a complaint unconverted. This Court, however, disagrees. For the reasons that follow, the Court concludes that the filing of an unsigned order of protection is a jurisdictional defect, and not a hearsay defect. Accordingly, defendant's motion to dismiss for facial insufficiency is GRANTED as to the Penal Law § 215.50(3) count. The motion is, however, DENIED as to the remaining counts. Defendant also moves to suppress certain post-arrest statements. As to that, the Court orders a Huntley/Dunaway hearing.
I. FACTUAL BACKGROUND
A. The Allegations
According to the accusatory instrument, on the afternoon of February 11, 2015, a police officer responded to an address in Manhattan. When he arrived, he encountered the complainant, who was agitated, crying and appeared terrified. She told the officer that the defendant had called her and told her that he had her daughter in his car and that she would not see her daughter again unless she gave him her current address. While the officer and the complainant were speaking, the complainant received a telephone call and shouted into the phone "Return my kid. Bring my kid home." The People allege that defendant's conduct was in violation of a final order of protection entered in Queens County Criminal Court that was in effect on that date.
B. Legal Proceedings
On February 16, 2015, defendant was arraigned on a misdemeanor complaint charging him with one count each of criminal contempt in the second degree, under Penal Law § 215.50(3), aggravated harassment in the second degree, under Penal Law § 240.30(2), and harassment in the second degree, under Penal Law § 240.26(3). At the arraignment, the People filed and served what they held out to be the order of protection referenced in the complaint.
The court released the defendant and adjourned the case for a supporting deposition. On March 5, 2015, the People filed the supporting deposition of the police officer who responded to the complainant's apartment. The Court concluded that the statements attributed to the complainant in the misdemeanor complaint were excited utterances and deemed the instrument an information.
Defendant filed the instant motion on April 13, 2015, and the People responded on May 6. The matter has been sub judice since then.
II. THE Information
The misdemeanor complaint, sworn out by Detective William Ficken, provides that:
I am informed by Police Officer Matthew Maddox ... that he received a radio run to respond to [230 West 20th Street, in Manhattan] at approximately 4:00 PM. I am further informed by Officer Maddox that when he responded to the above-described location, he observed ["T.H."] breathing rapidly and heavily, crying with tears streaming down her face, and shaking, and that while ["T.H."] was in the above-described emotional state, she stated in substance to Officer Maddox: Jerome Harrison called me and said that he had my daughter in the car and that I would not see my daughter again unless I gave him my current address.
I am further informed by Officer Maddox that while ["T.H."] was in the above-described emotional state, Officer Maddox then observed ["T.H."] receive another phone call while at the above-described location and that ["T.H."] shouted into the phone and stated in substance: Return my kid. Bring my kid home.
The defendant's conduct is in direct violation of a valid Order of Protection, issued in Queens County Criminal Court by Hon. Donna Marie Golia on November 21, 2012 [sic; should be 2014] in conjunction with Docket No.2014QN068174. The order expires on November 20, 2016 and orders the defendant to refrain from harassing ["T.H."]. The Order of Protection indicates that the defendant was advised in Court of the issuance and contents of the Order.
III. THE ORDER OF PROTECTION
As noted above, the People filed and served at defendant's arraignment what they held out to be the order of protection referred to in the misdemeanor complaint. That order bears an entry date of November 21, 2014, and an expiration date of November 20, 2016. It is, however, not signed by Judge Golia, as alleged in the information, or by any other judge.
IV. DISCUSSION
Defendant correctly observes that the order of protection filed and served in support of the criminal contempt count was not signed by a judge. The Court agrees that this defect renders that count facially insufficient. As to the remaining counts, however, the Court rejects defendant's argument that the "no legitimate purpose" element is insufficiently pled.
A. Facial Sufficiency in General
A misdemeanor information serves the same role in a misdemeanor prosecution that an Indictment serves in a felony prosecution: it ensures that a legally sufficient case can be made against the defendant. People v. Dumay, 23 NY3d 518, 16 N.E.3d 1150, 992 N.Y.S.2d 672 2014 ); People v. Alejandro, 70 N.Y.2d 133, 138–39, 517 N.Y.S2d 927, 930–31, 511 N.E.2d 71, 74 (1987). Accordingly, a misdemeanor information must set forth "nonhearsay allegations which, if true, establish every element of the offense charged and the defendant's commission thereof." People v. Kalin, 12 NY3d 225, 228–29, 906 N.E.2d 381, 383, 878 N.Y.S.2d 653, 655 (2009) (citing People v. Henderson, 92 N.Y.2d 677, 679, 685 N.Y.S.2d 409, 708 N.E.2d 165(1999) and CPL 100.40(1)(c) ). This is known as "the prima facie case requirement." Kalin, 12N.Y.3d at 229, 906 N.E.2d at 383, 878 N.Y.S.2d at 655.
The prima facie case requirement does not necessitate that the information allege facts that would prove defendant's guilt beyond a reasonable doubt. People v. Jennings, 69 N.Y.2d 103, 115, 512 N.Y.S2d 652, 657, 504 N.E.2d 1079, 1084 (1986). Rather, the information need only contain allegations of fact that "give an accused sufficient notice to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense." People v. Casey, 95 N.Y.2d 354, 360, 717 N.Y.S2d 88, 91, 740 N.E.2d 233, 236 (2000). A court reviewing for facial insufficiency must subject the allegations in the Information to a "fair and not overly restrictive or technical reading," id., assume that those allegations are true, and consider all reasonable inferences that may be drawn from them. CPL §§ 100.40, 100.15 ; People v. Jackson, 18 NY3d 738, 747, 944 N.Y.S2d 715, 721–22, 967 N.E.2d 1160, 1166–67 (2012). See also Casey, 95 N.Y.2d at 360, 717 N.Y.S2d at 91, 740 N.E.2d at 236.
B. The Criminal Contempt Count is Facially Insufficient.
Defendant makes three arguments in support of dismissal of the count charging him with violating Penal Law § 215.50(3). He argues, first, that the order of protection the People filed in support of this count was not signed by a judge, second, that the order was not signed by the defendant, and, third, that the order is not certified. Because the Court agrees with defendant's first argument, it declines to reach the second and third.
1. Facial Insufficiency in Criminal Contempt Cases
Penal Law § 215.50(3) makes it a criminal offense for a defendant to intentionally disobey "the lawful process or other mandate of a court," including a final order of protection, other than one "arising out of a labor dispute." A facial insufficiency motion should be granted in a criminal contempt case involving the violation of an order of protection when the order bears an obvious defect that renders the order ineffective as a "lawful process or other mandate of a court." Thus, for example, in People v. Muchuca, 43 Misc.3d 1220(A), 997 N.Y.S.2d 100 (Crim. Ct. N.Y. County 2014) (Statsinger, J.), this Court dismissed where, due to a clerical error, the order of protection the defendant was accused of violating bore an expiration date of January 2, 2013, instead of January 2, 2014. Since the 2013 date was before the date upon which the defendant was alleged to have violated the order, that order had "expired according to its own terms" before the offense was committed, and the information was deemed insufficient. Id. (following People v. Cordwell, 11 AD3d 731, 783 N.Y.S.2d 409 (3d Dept 2004) ).
Similarly, in People v. Kelley, 42 Misc.3d 1221(A), 986 N.Y.S .2d 867 (Crim Ct. N.Y. County 2014) (Statsinger, J.), where defendant was charged with violating an order of protection by telephoning the complainant, this Court dismissed the contempt charge because the box on the order forbidding telephonic communication had not been checked. See also People v. Welte, 31 Misc.3d 867, 920 N.Y.S.2d 627 (Webster Town Ct 2011) (contempt information dismissed where terms of order of protection did not prohibit defendant from contacting complainant's social media "friends," the only contumacious conduct alleged).
On the other hand, dismissal is inappropriate where the claim arises from a purported defect that is not apparent or obvious on the face of the order of protection. Thus, for example, in People v. Rosario, 44 Misc.3d 1204(A), 997 N.Y.S.2d 100 (Crim Ct. N.Y. County 2014) (Statsinger, J.), this Court denied a motion to dismiss for facial insufficiency where the defendant claimed that he did not understand the terms of an order of protection because there was no Spanish interpreter present in court-none had been requested-when the order was entered. The Court held that "[w]hether, and to what extent, defendant understood the [order] are questions for the finder of fact at trial." Id. Similarly, in People v. Ervin, 47 Misc.3d 489, 1 N.Y.S.3d 787 (Crim Ct N.Y. Count 2015) (Statsinger, J.), this Court held that, in a criminal contempt case where the order of protection defendant was alleged to have violated bore an endorsement making it subject to modification by subsequent Family Court order, the information was facially sufficient even though the People did not plead the absence of a Family Court order that might have permitted the allegedly contumacious conduct. Rather, the Court concluded, the defendant would be permitted to raise the existence of such a Family Court order as defense at trial. See also People v. Cook, ––– Misc.3d –––– 2015 WL 3422708 (Sup Ct Renssalaer County 2015) (same).
2. That the Order of Protection Is Not Signed by a Judge Renders the Contempt Count Facially Insufficient.
The Court has reviewed the copy of the order of protection that the People filed in this case, which they held out to be the order referenced in the accusatory instrument, and defendant is correct—that order was not signed by a judge. This defect clearly puts this case in the same category as Muchuca and Kelly. There is a defect in the order of protection that is clear from the face of the document.
In criminal contempt cases, the information must provide a reasonable basis for concluding that the order of protection the defendant is accused of violating was a "lawful mandate." People v. Smith, 4 Misc.3d 909, 782 N.Y.S.2d 596 (Crim Ct N.Y. County 2004). A legally defective order of protection cannot serve as the basis for a criminal contempt prosecution. People v. Panetta, 41 Misc.3d 614, 972 N.Y.S.2d 446 (Middletown City Court 2013) (dismissing where order of protection did not comport with CPL § 530.13 because it was issued in favor of a party not covered by that section; "an order of protection issued in favor of a party not designated in CPL § 530.13(1) is not a lawful court mandate and cannot support a prosecution for criminal contempt under PL § 215.50(3)"); Smith, 4 Misc.3d at 913, 782 N.Y.S.2d at 599 (granting trial order of dismissal of § 215.50(3) count because temporary order of protection in favor of a place, as opposed to a person, was "not a lawful order.")
An order of protection that has not been signed by a judge is not a "lawful mandate." As the court noted in People v. Boyce, 25 Misc.3d 1056, 886 N.Y.S.2d 329 (Crim Ct N.Y. County 2009), the lack of a judge's signature on an order of protection is a "flaw." Id. "A signature is the imprimatur of authenticity with regard to court orders and judgments." Id. (citations omitted). Although the lack of a signed order of protection in Boyce gave the court "serious pause," that court ultimately declined to dismiss. Boyce treated the filing of an unsigned signed order of protection as a hearsay defect, rendering the misdemeanor complaint unconverted, and not a jurisdictional insufficiency. "The deficiency here can be ascribed to the fact that, without a facially valid Order of Protection, there are only hearsay allegations in the accusatory instrument as to whether that Order of Protection had been issued and was in effect on the day in question."
While this Court agrees with Boyce that the absence of a signature on the order of protection is a flaw, it disagrees with that court's characterization of the flaw. The deponent detective's description of the order of protection in the misdemeanor complaint is indeed hearsay. If the People had never filed the order of protection at all, the misdemeanor complaint would remain unconverted. But that is not what happened here. The People filed what they held out to be the order of protection referred to in the misdemeanor complaint-the very one that the misdemeanor complaint implies that the deponent officer reviewed. Thus, the People cured the hearsay in the misdemeanor complaint by establishing the deponent's basis of knowledge, and converted it to an information. But it is a facially insufficient information because the order of protection is unsigned, and hence not a "lawful mandate." This facial defect is not materially different from the defect in those cases involving an order that expired before the contempt took place, and was hence not a "lawful mandate." E.g., Mucuhca, 43 Misc.3d at 1220(A), 997 N.Y.S.2d at 100.
That this is best viewed as a jurisdictional deficiency and not a hearsay problem can be illustrated by two short analogies. One example of a similar type of insufficiency would be the filing of a supporting deposition with a handwritten emendation by the complainant that negates an element of the offense. So if, for example, in an assault case, the complainant signs a supporting deposition, then adds, in her own hand, "everything in the complaint is true, but the defendant did not hurt me," the supporting deposition would negate the physical injury element and the information would be facially insufficient as to any count that had physical injury as an element. Clearly, in this example, the defect is one involving facial insufficiency, and not hearsay. But there is really no difference from this example and the facts here. In both instances, the document that is necessary to convert a misdemeanor complaint negates an element of the offense.
That the flaw here is one involving facial insufficiency and not a hearsay defect can also be seen by analogy to cases where the defendant is charged with violating one of the sections of VTL § 511. Typically, in such cases, where the deponent officer has sworn that he reviewed the defendant's DMV abstract and that the abstract reveals that the defendant's driving privileges had been suspended, the filing with the court of the DMV abstract cures the hearsay defect. But if there were a case in which the DMV abstract that the People filed indicated that defendant's license had not, in fact, been suspended, then the charge would have to be dismissed as facially insufficient. If a DMV abstract is filed but negates a necessary element of the offense, and no other fact alleged supports that element, the defect is jurisdictional, and not a hearsay defect. The information is facially insufficient and must be dismissed. See, e.g., People v. Brown, 15 Misc.3d 1143(A), 841 N.Y.S.2d 821 (Crim Ct N.Y. County 2007).
The instant case is all of a piece with these examples. The filing of an order of protection that had not been signed by a judge negated the element of Penal Law § 215.50(3) requiring that the order the defendant is accused of violating be a "lawful mandate." The criminal contempt count is, therefore, facially insufficient. Accordingly, this Court concludes that, contrary to Boyce, the filing of an unsigned order of protection renders facially insufficient a criminal contempt count predicated on a violation of that order. That count is accordingly dismissed.
C. The Remaining Courts Sufficiently Please the "No Legitimate Purpose" Element
Defendant moves to dismiss the remaining counts, which charge aggravated harassment in the second degree under Penal Law § 240.30(2) and harassment in the second degree under Penal Law § 240.26(3). He asserts that the "no legitimate purpose" element, which is common to both offenses, is insufficiently pled. This Court disagrees.
A communication has "no legitimate purpose" for purposes of the harassment statutes when it has no legitimate purpose "in that its purpose was to cause the harm identified in," or reflects the intent identified in, the statute at issue. People v. Kitsikopolous, 47 Misc.3d 1220(A) (Crim Ct N.Y. Count 20150 (Statsinger, J.) (emphasis in original). Here, both statutes at issue contain this requirement. Section 240.30(2) requires that a telephone communication have no legitimate purpose in that it reflects the "intent to harass or threaten another person," while section 240.26(3) requires that a course of conduct have no legitimate purpose in that it "alarm[s] or seriously annoy[s] another person."
Defendant is alleged to have telephoned the complainant twice on the same day; in one of the calls, he threatened to retain custody of—or possibly harm—her child if the complainant did not assent to his demand that she provide her current address. The content of the second call is not pled, but, based on the description in the information of her reaction to it, that call was clearly upsetting to the complainant. Defendant cites this Court's decision in People v. Dixon, 44 Misc.3d 1216(A), 997 N.Y.S.2d 100 (Crim Ct N.Y. County 2014) (Statsinger, J.), in arguing that the information is facially insufficient as to the "no legitimate purpose" element. As defendant correctly observes, Dixon held that determining whether "an information .. sufficiently pleads the no legitimate purpose' element requires an examination of the context, timing and number of telephone calls, their content, if any, and whether those calls continued after a demand that they cease." Id .
While it is true that not every factor identified in Dixon is present here, the information is still sufficient. The first telephone call contained a threat that complainant would not see her daughter again unless she gave the defendant her home address. In addition, there is a reasonable inference that the defendant made the second call either to repeat that threat, or to advance in some other way its goal of terrorizing the complainant into disclosing her address. Dixon is quite clear that even a "single call can make out a prima facie case" if there is "a sufficient showing of the requisite intent" or effect on the complainant. Id.
The "sufficient showing" identified in Dixon can be satisfied by the content of the communication alone. For example, in People v. Williams, 45 Misc.3d 1202(A), 3 N.Y.S.3d 286 (Crim Ct N.Y. County 2014), an information alleging single telephone call in which defendant threatened to kill complainant and her family made out a prima facie violation of § 240.30(2). And here, similarly, the People have made the requisite showing. The phone calls that defendant made to the complainant clearly reflect an intent to "harass or threaten" the complainant, § 240.30(2), and also clearly had the effect of "alarm[ing] or seriously annoy[ing]," § 240.26(3), her. Indeed, it is hard to imagine a statement more threatening or alarming to a parent than the threat that she will never see her child again. The information accordingly sufficiently pleads the "no legitimate purpose" element.
Defendant's alternative argument is that the information is facially insufficient in that it does not describe the true "context" of the two calls and that, if it did, that context would reveal "that Mr. Harrison had a very legitimate purpose for making the alleged statements to" the complainant. Yerman Aff. at ¶ 25. Defense counsel follows this with an extensive rendering of his conversations with the complainant regarding the circumstances of her marital dispute with the defendant. Yerman Aff. at ¶ 26. But counsel's account of what he believes happened is irrelevant. That the defendant might have a defense to the charge is immaterial to the question whether the information is facially sufficient-that is a matter for the finder of fact at trial. If the finder of fact finds, after hearing defendant's proffered "context," that there was a "legitimate purpose" to these seemingly extortionate telephone calls, it will acquit the defendant.
IV. CONCLUSION
For the foregoing reasons, defendant's motions to dismiss for facial insufficiency is granted as to the criminal contempt count, and denied as to the remaining counts. The Court also orders a Dunaway/Huntley hearing.
This constitutes the Decision and Order of the Court.